Friday, October 23, 2020

Still getting jurisdictionality wrong

An unpublished Ninth Circuit opinion holds the district court lacked subject-matter jurisdiction over a copyright dispute because, as alleged, all infringing acts occurred outside the United States. But this should be a merits rather than jurisdictional issue. That the infringement took place outside the United States means U.S. copyright law was not violated because it does not "reach" or "prohibit" non-U.S. conduct. And the plaintiff's rights under U.S. copyright were not violated. All of which, Morrison v. Australia National Bank tells us, are merits questions to be resolved on 12(b)(6), not jurisdictional questions under 12(b)(1). It is amazing that courts continue to get this wrong. Especially since the court cited Twiqbal and looked only to the allegations in the complaint, which lacked any facts showing U.S.-based conduct.

Posted by Howard Wasserman on October 23, 2020 at 08:26 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Friday, October 09, 2020

Ford arguments

Here is the transcript from Wednesday's argument in Ford and here is my SCOTUSBlog story. A few additional thoughts:

The Justices do not seem to understand or recognize that the prevailing analytical approach has 3 parts (at least as it has developed): 1) Purposeful availment; 2) Relatedness; 3) Unreasonableness. A lot of the hypos conflated the three. The Chief's hypo about the small manufacturer in Maine could be resolved on the third prong (much like Justice Breyer's hypos about Egyptian shirts and Brazilian coffee in his Nicastro concurrence). Other hypos were about purposeful availment rather than relatedness. Justice Kavanaugh tried to disaggregate them in his colloquy with plaintiff counsel, giving him a chance to describe the differences between the first two steps and why they do not run together. But I do not know whether it will take. (There is an argument that the three-step approach is wrong and inconsistent with Shoe, but this is where we are until the Court changes it. So it would be helpful if they recognized their analysis).

Justice Kavanaugh explored the World Wide connections with both sides, including quoting specific language from the case. Counsel for Ford argued that the issue is open because Audi and VWA did not challenge jurisdiction. Counsel for plaintiffs argued that there is a reason for that--jurisdiction over a nationwide manufacturer for defects in its products forms the "core" of specific jurisdiction.

I am bad at predictions, so I will not make one. But the Justices were less hostile to the plaintiffs' position than I anticipated. I do not know what that means for the outcome.

On a different note, it was easier writing the argument recap (what I have found the hardest of the three SCOTUSBlog pieces for each case) under the new argument format because it was easier to take notes and to organize the piece--Intro and nine mini colloquies per side, with less need to scour many pages for common themes. Although I was raised in the Scalia-led free-for-all that also is reflected in law-school moot court, this format is growing on me and I am curious if they will maintain some version of this when the Court returns to face-to-face. And if Court membership expands.

Posted by Howard Wasserman on October 9, 2020 at 01:11 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

Posted by Howard Wasserman on October 9, 2020 at 10:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 06, 2020

"Relatedness" in personal jurisdiction--Ford and World Wide Volkswagen

SCOTUS on Wednesday hears arguments in Ford v. Montana Eighth Judicial District and Ford v. Bandemer, considering whether there can be specific jurisdiction over a defendant who sells and ships products into the forum state but not the specific unit involved in the events at issue. The Court must decide whether "give rise or relate to" reflects one concept or whether "relate to" is a distinct and broader concept and how much broader. I am covering the case for SCOTUSBlog. Larry Solum offers some thoughts.

This case is the spiritual successor to World Wide Volkswagen, answering questions that were unnecessary 40 years ago and reflecting recent doctrinal shifts. Audi and Volkswagen of America did not challenge personal jurisdiction, recognizing that they were subject to jurisdiction based on the large number of cars that they sold, marketed, serviced, and shipped to the state, although they did not sell or ship the Robinson's car to Oklahoma (they shipped that to NY). Whether this was general "doing business" jurisdiction or some broader conception of specific jurisdiction was unresolved, although it was the topic of academic debate between Mary Twitchell and Lea Brilmayer.

The Court's recent decisions (several authored by Justice Ginsburg) narrowing general jurisdiction to "home" (meaning principal place of business and state of incorporation for corporations) changes the calculus for Ford, which stands in the same position as Audi and VWA. There is no general jurisdiction, because Ford is not incorporated or headquartered in Montana or Minnesota, just as Audi and VWA were not incorporated or headquartered in Oklahoma. So this squarely presents how far (or not far) relatedness extends, including whether it reaches cases in which the defendant has contacts with the forum that are "identical" or "similar to" the out-of-state contacts that caused the accident.

This could be the most significant of the recent wave of P/J cases. If the Court narrows the relatedness standard and finds no specific jurisdiction, it could make it difficult for plaintiffs to sue manufacturers in the locus of the accident, which usually is the plaintiff's home. Instead, often-less-resourced plaintiffs will have to travel to the better-resourced defendant's home (having to sue Ford in Michigan) or to some third state where the defendant did have contacts (such as where Ford manufactured or made first sale of the car at issue). Either is less convenient and more burdensome for the plaintiff. Waiting to hear arguments, but I expect the Court to be more divided on this case than in most of the other recent PJ cases.

Finally, on a teaching point. I use World Wide to show the intersection between subject matter and personal jurisdiction and the strategic choices that parties must make. Depending on the outcome in Ford, everything about WW would be different if the case arose now.

The Robinsons sued Audi, VWA, World Wide (the regional distributor), and Seaway (the dealer) in Oklahoma state court in 1975. Audi and VWA recognized they were stuck in Oklahoma, but wanted to be in federal court. WW and Seaway, both from New York, destroyed complete diversity because the Robinsons were from New York (the accident in Oklahoma prevented them from reaching Arizona and establishing the new residence so as to change their domiciles). So Audi and VWA financed WW and Seaway to challenge personal jurisdiction through the OK courts and to SCOTUS. Following the SCOTUS decision and the dismissal of WW and Seaway in 1980, Audi and VWA removed. But that strategy is unavailable under current law. In 1988, Congress amended what is now § 1446(c)(1) to prohibit renoving later-becomes-removeablae diversity cases more than one year after filling. So Audi and VWA now gain nothing from financing WW and Seaway to get out of the case. Given the cost of litigation, would WW and Seaway thus decline to challenge personal jurisdiction, litigate in Oklahoma, and hope to shift the blame onto the manufacturers?

On the other hand, if the Court rejects jurisdiction in Ford, Audi and VWA would have a different strategy--join WW and Seaway in getting the case dismissed from Oklahoma.

Posted by Howard Wasserman on October 6, 2020 at 09:55 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 25, 2020

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Posted by Howard Wasserman on September 25, 2020 at 11:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, September 04, 2020

Getting qualified immunity wrong

This letter, from the lobbyist from the Oregon Coalition of Police and Sheriffs to an Oregon legislative committee considering a host of police-reform bills. Benefit of the doubt: The author (according to his LinkedIn page) is not an attorney and he might be talking about some state tort qualified immunity doctrine  rather than § 1983 federal qualified immunity. But presuming he is talking about § 1983, this is not good.

The letter says:

• "Qualified immunity is a legal principle that applies not only to law enforcement officers, but all public employees and officials" (emphasis in original): The only legally accurate statement in here.

• "It states that a public official cannot be sued . . . so long as those actions occur legally within the scope of the public employee's official duties. Qualified immunity is never a shield for illegal activity. It is not applicable if a public employee is acting outside the scope of their responsibilities." (emphasis in original). This is so wrong, which is why I was unsure whether he was talking about a state tort defense as opposed to § 1983. But as an explanation of § 1983, it conflates "under color of law" with immunity. A public official acts under color, and subject to liability, when performing his public job responsibilities; whether immunity applies is a second and distinct question. And the argument ignores the mounting cases in which courts find that an officer, under color of law, did something unlawful (e.g., making a prisoner sit in feces for four hours or stealing property in executing a warrant) but is not liable because no prior officer did the precise thing in the precise manner within that federal circuit.

• "The purpose of Qualified Immunity is to ensure that litigation does not completely place a public employee at the mercy of litigious counterparties." Sort of. It does not protect those employees just because. It protects them so that they will do a better job of policing when they can exercise judgment free from the fear of litigation. But when the result of a doctrine is that some (many?) officers acting as if they are unchecked, that doctrine may not be serving its intended purpose.

• I will not quote the whole thing, but the letter argues that qualified immunity also protects legislators. who are "uniquely and powerfully positioned to broadly deprive individuals of their rights." Again assuming he is talking about immunity from federal suit, he is wrong in the opposite direction. Legislators enjoy absolute immunity for their votes and legislative actions. But that distinction is based on the fact that individual legislators are less able to harm someone, there are political and electoral checks, and any violation is caused by the enforcement of legislation, remedied by a suit against the enforcing executive (who, of course, can claim qualified immunity). Executive immunity is (and should be) more limited than legislative immunity because executives interact with the public and can act individually to violate rights. Oh, and they can shoot people.

Again, if he is attempting to talk about state tort immunity, ignore the above--I know nothing about Colorado law so I do not know if what he says is correct. But if he is attempting to talk about federal claims under § 1983 or if he confused the two, this is a poor piece of advocacy.

Posted by Howard Wasserman on September 4, 2020 at 01:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 01, 2020

Separation of powers, separation of parties, and subpoena enforcement

Following on Monday's post about the D.C. Circuit holding the House lacked a cause of action to enforce a subpoena: I mentioned that Congress could fix this by enacting a statute creating a right to sue. But that effort would offer an interesting test of the Levinson & Pildes "separation of parties, not separation of powers" thesis.

The President would likely veto any such bill. He will not want to subject himself and the executive branch to subpoena-enforcement actions. And he will want to retain control over subpoena enforcement actions, through DOJ.

The question then becomes whether Congress will override that veto. A legislature committed to separation of powers--and the Madisonian conception of ambition counteracting ambition--would override the veto, asserting its institutional prerogatives against executive recalcitrance. But Congress has been interested in checking the executive only when he is from the opposing party. So the question is whether sufficient Republicans in both houses would override a Trump veto or sufficient Democrats in both houses would override a Biden veto. And the answer to that is not clear. Perhaps each party will play a long game--"override my co-partisan President now so the power exists when the opposing party is in the White House." But the answer is not clear.

Posted by Howard Wasserman on September 1, 2020 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, August 31, 2020

D.C. Circuit has a busy day

As has been widely discussed, today is Judge Griffith's last day on the court, so it wanted to get some things out.

First, the en banc court in an 8-2 per curiam denied Sullivan's Michael Flynn's petition for writ of mandamus, concluding that Flynn had an adequate alternative remedy via district court proceedings on the motion (which may result in dismissal) or appeal or further mandamus of any district court decision. The court also declined to order the case reassigned to another district judge. Griffith wrote a short concurrence, emphasizing the purely legal (rather than political) nature of the dispute in the case.

Second, Griffith wrote for a 2-1 panel that the House (held by the en banc court to have standing to sue to enforce a subpoena against Don McGahn) could not sue to enforce because it lacked a cause of action to sue. Neither Article I (the source of the right to subpoena information), equity, nor the Declaratory Judgment Act provides an existing cause of action. Congress can fix the problem by enacting a statute creating a right to sue. This confirms why, as I wrote following the en banc decision, standing is such a colossal waste of time. It also reflects a D.C. Circuit (and perhaps Supreme Court) that seems determined to push the House to start fining and jailing witnesses who refuse to comply with subpoenas by cutting-off the civil-suit alternative. Like its predecessor, it may not withstand en banc review.

Judges Rogers dissented, arguing that Art. I and the DJA provide a right to sue. She continues to argue there is jurisdiction over the action under § 1331, a point the majority found unnecessary to address. McGahn argued there was no jurisdiction over an action by the House because no statute grants that jurisdiction, while  § 1365 grants jurisdiction over actions by the Senate. The implication is that § 1365 provides the sole basis for jurisdiction in actions by the Senate, superseding § 1331. And since there is no House counterpart to § 1365, the House cannot rely on § 1331. But this ignores the plain text of § 1331, which gives jurisdiction over anything that arises under, without Congress having to do more. As Rogers pointed out, § 1365 was enacted when § 1331 had an amount-in-controversy requirement, so a separate statute was necessary to give jurisdiction over all possible actions. Many separate jurisdiction grants were enacted for similar reasons. But since Congress eliminated the AIC requirement in 1980, none has been read as anything more than vestigial and certainly not as precluding § 1331.

Posted by Howard Wasserman on August 31, 2020 at 03:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, August 29, 2020

Palin lawsuit against New York Times continues

Sarah Palin sued The Times over an editorial describing a link between the shooting of Gabby Giffords and Palin's PAC's publishing a map featuring gun sights "targeting" Democratic districts. The case has a convoluted procedural history. The district court held an evidentiary hearing on a 12(b)(6) motion seeking information to aid the plausibility analysis, then granted a 12(b)(6); the Second Circuit held that the evidentiary hearing was improper, then reversed the order granting the 12(b)(6).

The district court on Friday denied summary judgment to both parties. Palin had moved, arguing that stare decisis on constitutional issues is less rigid and that actual malice should not apply in the changed factual and media circumstances of the 55 years since New York Times. The court made quick work of rejecting that argument, explaining the difference between horizontal and vertical stare decisis and dropping the cute line that "binding precedent . . . does not come with an expiration date."*

[*] Usually.

The court denied the defendants' motion. It concluded that a reasonable jury could find the editor (and thus the paper) acted with actual malice as to alternative, defamatory meanings of the words in the editorial and actual malice as to the falsity of that alternative meaning. This is an unusually (although arguably appropriately) forgiving view of actual malice. The court sounds at several points as if it believes the evidence favors the defendants and does not believe (by clear-and-convincing evidence) they acted with actual malice. But the court is conscious that the weighing of evidence is not appropriate for summary judgment and must be the subject of a trial.

Posted by Howard Wasserman on August 29, 2020 at 02:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, August 11, 2020

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

Posted by Howard Wasserman on August 11, 2020 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, August 07, 2020

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 06, 2020

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Tuesday, July 28, 2020

JOTWELL: Singer on Reichman, Sagy, & Balaban on machines and judges

The new Courts Law essay comes from guest reviewer Jordan Singer (New England Law-Boston), reviewing Amnon Reichman, Yair Sagy, & Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

Posted by Howard Wasserman on July 28, 2020 at 10:32 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, July 24, 2020

(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO

A federal judges issued a TRO preventing federal paramilitary force in Portland from targeting journalists and legal observers. An existing preliminary injunction, to which the City stipulated, does the same as to Portland police. Some thoughts and questions.

First, the TRO requires journalists and legal observers to identify themselves through badges or distinctive clothing (hats, press passes, etc.). Some concerns and questions.

Vintage-reporter-fedora-hat-camera-picture-id510580998First, it is about time we revived this look from His Girl Friday or The Brady Bunch.

Second, this seems to run afoul of the principle that the press does not have special status from other speakers when it comes to what they can say and their access to spaces. The key access cases speak of information-gathering by the press and the public. I expect that some non-press people in the mix of these protests are there to observe and record. And they possess or can possess the same equipment that allows a reporter to do her job--a device that takes photographs, moving pictures, and audio recordings. And I assume fedoras can be purchased online. Maybe the point should be to not have paramilitary forces using force and effecting arrests indiscriminately against anyone who happens to be in a crowd but is not engaging in unlawful activity, not only those with J.D.s or an institutional affiliation.

Second, the government tried to defeat the plaintiffs' standing with a string of cases making it difficult to challenge practices within the criminal-justice system (choke holds during arrests, discriminatory bail or sentencing); the cases rest on the refusal to speculate that the plaintiff will break the law and thus come in contact with the criminal-justice system and be subject to those policies. The court rejected that because threat to plaintiff arose not from breaking laws, but from engaging in protected First Amendment activity--"It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference." Good call.

Third, the court orders wide dissemination of the order, including to Bill Barr and Ken Cuccinelli and those with supervisory authority over agents in Portland. The reason is that "the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity" in any Bivens action. This is odd. The violation of the order is not necessarily the same as a violation of the underlying constitutional rights protected by the order, but only the latter would be the basis for a Bivens action. The court seems to be couching its power to enforce its order with its power to award damages should an injury occur. That is, it will use its equitable power to enforce its equitable order by imposing a legal remedy. Equity cannot enjoin a crime, but can it enjoin a constitutional tort? Any way, I am troubled by the practice--made necessary by unwise qualified-immunity doctrine--of courts announcing that "henceforth, some right is clearly established.

Update: From a conversation with a Remedies colleague: A court can enforce an injunction through civil contempt, which can be compensatory. A court could order the violating defendant to pay money to the plaintiff in the amount of the injury suffered. And if that injury were physical (e.g., medical expenses from being shot), the remedy would look like compensatory damages. But Bivens and qualified immunity still have nothing to do with this. A plaintiff need not bring a Bivens claim if the remedy is contempt for an existing court order in an ongoing case. And qualified immunity should have no role to play in the court enforcing an existing order.

Posted by Howard Wasserman on July 24, 2020 at 08:26 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 13, 2020

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.

Mazars

1) Which way do the incentives cut following Mazars and how likely is litigation over future subpoena disputes? The Chief's premise is that these cases historically were handled through the hurly-burly of politics until inter-branch negotiation broke down here (with no mention of why inter-branch negotiation broke down during this administration and not before). But Congress' subpoena power cannot be too broad, otherwise "[i]nstead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."

But then why had Congress never previously walked away from the bargaining table? The majority cites four examples--from Washington, Jefferson, Reagan, and Clinton--in which Congress has negotiated for and accepted some-but-less-than-all of what it requested. He cites no examples in which Congress walked away, despite precedent hinting at a broader subpoena power than what the Court recognized.

More importantly, what about presidential incentives? He holds the information and has no desire to give it up unless and until compelled to do so. Mazars offers a more beneficial standard (how beneficial is a subject of debate and must await future cases) that must be satisfied before he can be compelled to do so. So it seems to me that "instead of negotiating over information requests, [the President] could simply walk away from the bargaining table and compel [Congress to start the lengthy process to] compel compliance in court," where the President can try to avail himself of the new standard. Moreover, time is on the executive's side--if the litigation process takes a year or more (not unlikely if SCOTUS gets involved), the President can try to hold out to the next election or to the end of the Congress and the expiration of the subpoena.

2) The President's incentive to walk away is furthered by the Speech or Debate Clause, which prevents suit against Congress. The house or the committee must make the first move by bringing an action to enforce the subpoena or holding the President in contempt of Congress and seeking to enforce the contempt order (which requires the U.S. Attorney for D.C.). Either way, Congress is the first actor. The President's incentive is not to bargain, to run out the clock, and, perhaps, try to shift political blame onto Congress for escalating the political stalemate.

3) We see a stark contrast in what gets left to the hurly-burly of politics and what is appropriate for judicial refereeing. Whether members of the legislature can rig the design of legislative districts to (try to) ensure continuation in office of themselves and their party colleagues) is politics; how one branch engages in oversight of another branch requires judicial intervention. For present purposes, it does not matter which is correct; the point is an odd disparity.

Vance

4) The procedural issue in Vance involves Younger abstention. The state grand jury issued the subpoenas, Trump sued the DA in federal court, the district court abstained in deference to pending state proceedings, and the Second Circuit held that abstention was improper. Vance did not appeal the Younger ruling, so SCOTUS never had reason to decide it. But the Court said that a President could challenge in federal court a subpoena that attempted to influence or manipulate his official actions. Later, the Court says the President can raise "subpoena-specific constitutional challenges, in either a state or federal forum," such as claims of undue influence or undue interference.

But how does a case such as this fit into Younger? The typical framework for Younger goes as follows: 1) Whether the case falls within one of three classes of cases (including ongoing criminal proceedings; 2) consideration of the Middlesex factors of whether there is an ongoing proceeding, whether the proceeding implicates state interests, and whether the federal plaintiff can raise federal issues in state court; and 3) whether the case falls within an exception, such as bad faith, harassment, or "other exceptional circumstances."

The Second Circuit's analysis did not follow this framework. It instead held that Younger's underlying concerns for comity were not implicated in a case built around a federal-state conflict and raising "novel and serious" federal issues. It could have squeezed those concerns into the exceptions (this is what Trump argued in the complaint), but instead made them macro-level policy considerations that a court must consider before jumping into that framework.

5) What about Younger going forward, in this case or a future case? With respect to subpoenas for private documents, the President seems to be an ordinary citizen able to challenge a subpoena on state and federal grounds, including unique federal presidential grounds such as non-interference with Article II functions. Are those challenges automatically a basis for federal jurisdiction and non-abstention? Can ordinary state-law arguments against a subpoena, such as overbreadth, be a basis for federal jurisdiction? Do state-law arguments become Article II arguments when raised by the President? Must there be a federal forum for all Article II arguments, in a way there need not be a federal forum for First Amendment arguments?

6) The Court's resolution arguably alters the Younger analysis in this case. The Second Circuit rejected abstention because of the President's "novel and serious claims," specifically that the President is absolutely immune from state criminal investigation or that a unique standard applies. So the same questions apply: If the President is asserting micro challenges, many under state law, to specific pieces of the injunction, is a federal forum warranted? Can the lower court, having rejected Younger, find abstention appropriate given the changed nature of the case?

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Wednesday, July 08, 2020

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Monday, July 06, 2020

On invalidating laws and universal declaratory judgments

After the jump is FN 8 of Kavanaugh's plurality in Barr v. AAPC. As I said, I wanted to include this in its own post.

The term “invalidate” is a common judicial shorthand when the Court holds that a particular provision is unlawful and therefore may not be enforced against a plaintiff. To be clear, however, when it “invalidates” a law as unconstitutional, the Court of course does not formally repeal the law from the U. S. Code or the Statutes at Large. Instead, in Chief Justice Marshall’s words, the Court recognizes that the Constitution is a “superior, paramount law,” and that “a legislative act contrary to the constitution is not law” at all. Marbury v. Madison, 1 Cranch 137, 177 (1803). The Court’s authority on this front “amounts to little more than the negative power to disregard an unconstitutional enactment.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

JUSTICE THOMAS’s thoughtful approach to severability as outlined in Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (slip op., at 2–6), and Seila Law LLC v. Consumer Financial Protection Bureau, ante, at 14–24, (joined by JUSTICE GORSUCH in the latter) would simply enjoin enforcement of a law as applied to the particular plaintiffs in a case. Under either the Court’s approach or JUSTICE THOMAS’s approach, an offending provision formally remains on the statute books (at least unless Congress also formally repeals it). Under either approach, the formal remedy afforded to the plaintiff is an injunction, declaration, or damages. One difference between the two approaches is this: Under the Court’s approach, a provision is declared invalid and cannot be lawfully enforced against others. Under JUSTICE THOMAS’s approach, the Court’s ruling that a provision cannot be enforced against the plaintiff, plus executive respect in its enforcement policies for controlling decisional law, plus vertical and horizontal stare decisis in the courts, will mean that the provision will not and cannot be lawfully enforced against others. The Court and JUSTICE THOMAS take different analytical paths, but in many cases, the different paths lead to the same place.

This is important in several respects.

It clearly explains that "invalidating" a law is merely "common judicial shorthand," that what the Court is really doing is holding that a provision "may not be enforced against a plaintiff." The Court does not say the law cannot be enforced at all or against all people, only against a plaintiff. But no matter what, the law remains on the statute books until Congress repeals it, a task only Congress can perform.

Kavanaugh perfectly describes judicial departmentalism: The injunction prohibits enforcement of the law against the plaintiff; the executive voluntarily respects decisional law in future enforcement efforts (but is not required to do so); and stare decisis means any enforcement fails in the courts. Under Kavanaugh's approach, by contrast, the declaration of a provision as invalid means it cannot be lawfully enforced against others. But Kavanaugh does not explain why this is so and I do not see why it should be. The statement conflicts with the Court's statement in Doran v. Salem Inn that a declaratory judgment does not stop a state government from enforcing a law against other persons and leaves government free to do so. And if declaratory judgment is a milder form of relief than an injunction, it should not have a broader party scope than an injunction.

Posted by Howard Wasserman on July 6, 2020 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Notes on Barr v. AAPC

There is a lot in the Court's decision in Barr v. AAPC, declaring invalid the government-debt exception (enacted in 2015) to the ban on robocalls to cell phones (enacted in 1991), but holding that the remedy is to allow government to enforce the original 1991 ban on everyone. Kavanaugh writes for the Chief, Thomas, and Alito that the exception is unconstitutionally content-based and does not survive strict scrutiny and for the Chief and Alito that the remedy is to level everyone down. Sotomayor finds the law constitutionally invalid under the less-rigid scrutiny proposed by Breyer and severable. Breyer writes for Ginsburg and Kagan that the law is constitutionally valid under less-rigid scrutiny, but that, since everyone else disagrees, they agree that the 2015 exception is severable. Justice Gorsuch agrees the 2015 exception invalid on a different analysis, but that the proper remedy is prohibiting enforcement of the entire robocall ban. So one 6-3 on the First Amendment issue, a largely different 7-2 on severability.

• The First Amendment portion is Reed redux. Five Justices (Kavanaugh's four + Gorsuch) say that the statute is content-based and requires strict scrutiny because it distinguishes based on subject matter--robocalls about government debt are ok, everything else (non-government debt, political speech, sales calls about baseball tickets) are prohibited. Breyer continues the squishier balancing he proposed in Bartnicki and then in Reed. The First Amendment is designed to protect political speech, public forums, and an airing for all viewpoints, but is not designed to interfere with commercial regulatory schemes that incidentally affect speech and that do not affect meaningful public discourse. Such incidental regulation should be subject to a less-rigid balancing of the seriousness of the speech-related harm, the importance of countervailing government objectives, the likelihood the regulation will achieve those objectives, and whether there are less-restrictive ways of doing so. Applying that, Breyer argues that the speech disadvantaged (non-government debt collection) is commercial and highly regulated, while the government has an interest in protecting the public fisc by enabling collection of government debts through calls made solely to collect government debt.

• Sotomayor argues the statute fails even under that test, because the government has not explained how collection calls about government debt are less intrusive and less privacy-invading than collection calls about private debt.

• Breyer (and the government) remain concerned that the application of strict scrutiny threatens regulatory schemes such as the SEC, FDCPA, and FDA, all of which limit what regulated entities can say in order to protect consumers. Kavanaugh dismisses the slippery-slope arguments, insisting that "courts have generally been able to distinguish impermissible content-based speech restrictions from tradition or ordinary economic regulation of economic activity."

• People have argued that the severability analysis shows that it is unlikely that the Court will declare invalid the entire ACA next Term, even if the individual mandate is invalid as a tax. Perhaps, although do not underestimate irrational hatred for the ACA. Plus, this case was as much a leveling case as a severability case--the 2015 exception was invalid because it treated the plaintiffs less favorably than collectors of government debt. The majority resolves that problem by "leveling down," leaving the 2015 exception unenforceable and placing all speakers in the same position of being unable to use robocalls. Gorsuch (joined by Thomas in this part) rejects this, arguing that the Court fails to remedy the violation of the plaintiffs' First Amendment rights--they want to be able to speak, not to have others prevented from speaking. The result of the case is that no one can make robo calls, which does not give the plaintiffs anything and harms non-plaintiffs.

The point of departure is what provision is invalid in this case. For Gorsuch, it was the original 1991 ban, whose invalidity is shown by the 2015 exception. Thus, the proper remedy for the violation is to make the 1991 ban unenforceable against the plaintiffs. But that, Kavanaugh argues, harms a different group of strangers--the millions of people who will be bombarded by robocalls.

• Kavanaugh's opinion includes a discursive footnote engaging Thomas on the  what it means to "invalidate" a law and what courts should do. I save that for a second post.

Posted by Howard Wasserman on July 6, 2020 at 01:35 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Wednesday, July 01, 2020

Law prof letter on constitutional-litigation reform

As I mentioned, A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The letter is here. Signatures close at 3 p.m. EDT (Noon PDT) today, for those who have not signed but wish to do so.

Posted by Howard Wasserman on July 1, 2020 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Endo on Engstrom & Gelbach on legal tech

The new Courts Law essay comes from new contributor Seth Katsuya Endo (Florida) reviewing Daniel Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. ___ (forthcoming 2020), exploring the interplay between new legal technology and the adjudicative process.

Posted by Howard Wasserman on July 1, 2020 at 10:24 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, June 29, 2020

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN)The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

Posted by Howard Wasserman on June 29, 2020 at 01:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 26, 2020

Mootness, departmentalism, and universality

Here is an interesting mootness decision from the Third Circuit (written by Judge Bibas). A lot of good discussion of mootness, as it relates to my current interests in universality and departmentalism. I am not sure I agree with the conclusion, but the opinion is a great read.

The action is a challenge by a group of public-school teachers to Pennsylvania's agency-fee statute. While the action was pending, SCOTUS held in Janus that agency-fee schemes violate the First Amendment. The state and the union told school districts and other public employees to stop deducting fees and to refund fees collected to cover expenses from Janus forward. Although the state agency-fee law remains on the books and agency-fee provisions remain in the contracts, the union insists it has no intention to enforce either in the future. The district court held the case moot and the court of appeals affirmed.

• Bibas tweaks the common description of mootness as "standing set in a time frame," because they are not co-extensive. A plaintiff must show standing at the outset, but it is on the defendant (or someone else) to show mootness once the action has begun. Thus, under new circumstances, while the plaintiff might be unable to establish standing , that does not mean the defendant can establish mootness. As he puts it, "sometimes a suit filed on Monday will be able to proceed even if, because of a development on Tuesday, the suit would have been dismissed for lack of standing if it had been filed on Wednesday. The Tuesday development does not necessarily moot the suit." I am going to use that framing in class.

• He recasts "voluntary cessation" as "volitional cessation." Often, especially in constitutional cases, the government defendant continues to insist on the validity of its actions, even while agreeing to abide by an injunction or precedent knowing that the courts will rule against it. In other words, the cessation is not voluntary, because the government believes he can do something and should be able to do something, if not for some pesky hindrance (such as a court order). The issue is whether government can reasonably be expected to engage in the challenged behavior in the future. So the issue is not whether the cessation is voluntary but whether it is volitional, a deliberate act, regardless of its cause.

• The reasons for cessation are probative of the likelihood of re-engagement in the behavior. The court is more skeptical of a defendant who continues to insist on the validity of the conduct but yields in the face of a court order, while more forgiving of a defendant who yields to new precedent established in a different case. From a judicial-departmentalist standpoint, this gets it backwards. A defendant cannot ignore a court order in the instant case (without immediate consequence) even if it believes the basis for the order incorrect; that case should be moot because the defendant will not re-engage on pain of contempt. A defendant can ignore precedent from another case without immediate consequence, so a promise to abide by precedent should not moot the new case. I made this argument in using judicial departmentalism to justify voluntary cessation as a limit on mootness.

Moreover, if we accept particularity/non-universality as the norm for injunctions, there is no distinction between those situations. If the injunction binds the government only as to the plaintiff, then all future enforcement that is or is not likely to occur is in response to precedent rather than to a court order. There is no difference between Chicago promising not to enforce its law against Y following an injunction barring Chicago from enforcing against X and Chicago promising not to enforce its law against Y following a decision ordering Milwaukee not to enforce its identical law against M.

• Nonetheless, the court found this case moot. The unions conceded the invalidity of agency-fee requirements and forswore collecting fees and there was no indication they will not continue to abide by that position. That agency-fee provisions remain on the books and in the CBAs did not matter and did not create any  injury that a court could redress absent some indicia of intent to enforce.

The plaintiffs tried to avoid mootness by pointing to challenges to campaign-finance laws found not moot following Citizens United and challenges to marriage laws found not moot following Obergefell. The former was a complex decision targeting one campaign-finance provision, uncertain in its application to other laws and provisions. The latter did not address the incidents of marriage challenged in the other cases. Janus was simple--no agency fees allowed--and the case presented no additional issues not covered by Janus.

I think that is a cramped reading of the marriage case.The Eighth Circuit highlighted that Obergefell dealt with laws in states other than Nebraska (thus did not bind Nebraska in any way) and that the ban on same-sex marriage remained in the Nebraska constitution. The court understood, if implicitly, that there remained something for Nebraska to enforce and nothing, other than the state's voluntary (or volitional) acquiescence to stop that enforcement.

Perhaps the analysis is different when it is a private actor, such as the union, rather than a government with departmentalist powers. Others have argued that courts are too-quick to accept government representations of non-enforcement and moot cases. If so, this case gets the balance right--this case is moot based on the union's promise where it might not be moot if the government were making the same promises. Of course, perhaps that distinction collapses when the defendant arguably acts under color, as the unions likely do under these agreements.

• The plaintiffs argued that a live controversy remained based on their request for a declaratory judgment that Pennsylvania's statute is constitutionally invalid. But the union did not intend to enforce the law. And because the constitutional violation is the threat of enforcement rather than the existence of the law (or contract provision), the plaintiffs' rights were not violated and they had "nothing to fear."

The court captures this with a nice civics lesson:

It may seem odd that unconstitutional laws remain on the books. But until a party faces a real threat of enforcement, a statute is mere words on a page.

I like that framing (and added it to a current paper). We can go further: If this were not true, no constitutional action would become moot because no law declared constitutionally invalid disappears without further legislative action, so the threat of departmental enforcement remains.

Posted by Howard Wasserman on June 26, 2020 at 12:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, June 22, 2020

No qualified immunity (updated)

The Court denied cert in Cooper v. Flaig, the 12th of the 13 petitions that were pending in mid-May. The remaining case is Davis v. Ermold, the sole case not arising from police misconduct. Not sure what they are waiting for on that one.

SCOTUSBlog's Petitions We're Watching includes three qualified immunity cases. One asks whether an appellate court can raise QI sua sponte and whether to overrule Pearson and another asks for clarification of the standard for how analogous precedent must be to clearly establish a right.

Posted by Howard Wasserman on June 22, 2020 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 20, 2020

No TRO/Injunction against Bolton book

Judge Lamberth denied the government request for a TRO and preliminary injunction stopping publication of John Bolton's memoir. The court found that the government is likely to succeed on the merits because Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations." But the distribution process is so far along that the court refused to stop it. The court was especially reluctant to order Bolton to, as the government requested, "'instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party.'" As the court put it, "for reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir."

The government likely will appeal, but I cannot imagine the D.C. Circuit reaching a different conclusion in four days. The complaint in this case requested a constructive trust to seize proceeds from the book and there is noise about a criminal prosecution. Lamberth was confident that Bolton had opened himself to both of those.

Some passing thoughts:

1) Another entry in the standing makes no sense chronicles: After finding no irreparable harm, Lamberth pivots to standing, pointing out that he could "reframe" the irreparable-harm factor in the equitable analysis as the redressability factor in the Article III standing analysis, while declining to do so. But it illustrates, even in passing, how standing really is constitutionalized merits and thus unnecessary.

2) He also did not address any First Amendment prior-restraint issues, again because unnecessary given the equitable analysis.

3) The irony of Bolton (likely?) losing the proceeds of the book: He was criticized in anti-Trump circles for refusing to present this material to the House or Senate during the impeachment proceedings and for choosing instead to tell the story when it is too late to help the country and when it will put money in his pocket. It looks like he may lose the money.

Posted by Howard Wasserman on June 20, 2020 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, June 18, 2020

Avoiding universality, again

The DACA decision again avoided the scope-of-injunction issue and the propriety of universal/non-particularized injunctions, in a clever way. The Court consolidated three cases--two (from New York and the Second Circuit and California and the Ninth Circuit) had entered universal injunctions prohibiting enforcement of the rescission order, while one (from the D.C. Circuit) had vacated the DHS order rescinding DACA. Only the Ninth Circuit decided the appeal and affirmed the injunction (the others were taken on cert before judgment) and the Ninth Circuit was the "lead" case in the caption. But the majority focused its review on the D.C. case that vacated the rescission under the APA without issuing an injunction. Affirming vacatur of the rescission order meant there was no rescission order, therefore nothing to enjoin. It became unnecessary to consider the propriety of the "nationwide" (unfortunately) scope of the injunction.

This may mean that resolution of the scope-of-injunction question is not on imminent, as I am not aware of any cases on SCOTUS's horizon squarely presenting the question. A reader points out that scope-of-injunction is at issue in Little Sisters of the Poor. If--as happened today and in the census case--the Chief joins the four liberals to hold that the Trump Administration messed up the APA, universality may be unavoidable.

Posted by Howard Wasserman on June 18, 2020 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Tuesday, June 16, 2020

Quick Civ Pro Thought after Bostock

A quick thought about teaching Civ Pro (not until January) following Bostock: One of my go-to illustrations of 12(b)(6) legal insufficiency and dismissals with prejudice has been a Title VII claim for sexual-orientation discrimination. I need to find something new.

Posted by Howard Wasserman on June 16, 2020 at 09:40 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Monday, June 15, 2020

SCOTUS not helping on qualified immunity

Eliminating qualified immunity does not alone solve the problem of police misconduct or within the criminal justice system, although it is a good start. It appears that start will not come from the Court. As of early May, 13 petitions challenged qualified immunity in application or in concept. The Court denied cert in three last month and denied cert in another eight on Monday. Baxter v. Bracey drew a solo dissent from Justice Thomas, repeating the arguments from his Ziglar concurrence on how neither the objective "clearly established law" or subject good faith matches 19th-century common law. Not even Justice Sotomayor, who has offered other objections to qualified immunity, joined Thomas or expressed disagreement with the denial.

Two cases remain from the original 13--police killing an unarmed man by tasing him nine times during an acute mental-health episode and Kim Davis refusing to follow Obergefell.

I wonder if the recent events and the introduction of legislation prompted the Justices to wait. Although they made this mess, Congress is moving to clean it up, letting the Court off the hook.

Posted by Howard Wasserman on June 15, 2020 at 10:24 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Thursday, June 04, 2020

Lawsuit over clearing Lafayette Square

Complaint here. Plaintiffs are Black Lives Matter DC and five individuals who were at the protests on Monday and would like to return; defendants are Trump, Barr, Esper, the acting chief of the U.S. Park Police, director of Secret Service, commander of D.C. National Guard, U.S. Army Chief of Staff, 100 John Does (federal law enforcement), and 20 John Poes (non-federal law enforcement). Claims are for violations of First and Fourth Amendments and conspiracy under §§ 1985(3) and 1986.

My prior post showed the problems the lawsuit faces. The Bivens and immunity problems do not go away. But the complaint finds cute ways to try show standing for prospective relief. It highlights plaintiffs' intent to continue demonstrating; the new W.H. perimeter prevents access to Lafayette Square or any protest space within view of the White House; and 3) statements by Trump and others to deploy violence against protesters--all of which establishes an imminent threat of future violence if they return to protest. The complaint also compares Trump's statements supporting protesters he likes (such as those who stormed statehouses in search of haircuts) and calling to "dominate" protesters he does not like, as a way to show that the actions against the protesters were viewpoint- and content-based.

Posted by Howard Wasserman on June 4, 2020 at 09:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, June 03, 2020

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

Posted by Howard Wasserman on June 3, 2020 at 10:39 AM in Article Spotlight, Civil Procedure | Permalink | Comments (3)

Monday, May 18, 2020

Cert denied in three qualified immunity cases

In a post about the Reuters stories on qualified immunity, I mentioned that SCOTUS had multiple cert petitions in the May 15 conference dealing with qualified immunity. Monday's Orders List included denials in three: Kelsay v. Ernst (police officer slams woman to the ground), Jessop v. City of Fresno (officers stole $ 225,000 in cash and rare coins while executing search warrant), and Clarkston v. White (retaliatory denial of charter-school application, where real issue was proper defendant rather than whether right was clearly establish). No noted dissents from any of the cases, even the truly egregious Jessop. Ten other petitions remain with the Court, including several that ask the Court to rethink the entire doctrine.

Posted by Howard Wasserman on May 18, 2020 at 09:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Sunday, May 17, 2020

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

Posted by Howard Wasserman on May 17, 2020 at 05:44 PM in Civil Procedure, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2)

When the middle might be worse than the extreme

Although several months away, universities, including law schools, are trying to figure out how to conduct fall classes. This Inside Higher Ed piece from April offered fifteen scenarios. The favored approach seems to be a return to campus, but with social-distancing and other protocols and with accommodations for students and faculty with age, health, or other reasons for being unable to return to the workplace without a vaccine or herd immunity.*

[*] And assuming that the wave of reopenings in May and June does not produce spikes in cases in June and July that set us back by several months.

Which really means that most schools will be doing a hybrid. They will be mixing in-person, remote, and online classes. And  in-person classes must have remote components. Professors who want to return to the live classroom will have to divide their sections (half the class live on Day One, the other half live on Day Two) and combine it with interactive technology--namely some kind of Zoom or similar hook-up--for the students who cannot be there. (Recording or live-streaming the regular live class is not a reasonable accommodation).

I have been thinking about how this will work and I am not sure it will. My in-person classes work because of a high level of engagement with the students in the room--a rapidly moving conversation, my pacing and moving around the room a lot, and working with and off stuff written on the dry-erase boards. I do not see how I can do that while being close enough to the computer to interact with those students, answer questions, see who is chatting or raising a hand, etc. People on Zoom cannot see the dry-erase board, so visuals would have to be on share screen in addition to the Board. In being close enough to the computer to engage the remote students, however, I fear I am going to lose meaningful interaction with the students in the room.

Given that, I think I might prefer to keep the entire class via Zoom. I believe I reached a point in March and April were I could run a Zoom class that was a reasonable approximation of an engaged law-school course that challenged students, engaged students, and taught students what they needed to know. It remains inferior to an in-person class. But it may be preferable to a hybrid that does a poor job for both sets of students.

Posted by Howard Wasserman on May 17, 2020 at 04:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Thursday, May 14, 2020

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Posted by Howard Wasserman on May 14, 2020 at 12:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Monday, May 11, 2020

Providing Real-World Context for the 1L Civil Procedure Course

The following post is by Jack H. Friedenthal (GW), Arthur R. Miller (NYU), John E. Sexton (NYU), and Helen Hershkoff (NYU) and is sponsored by West Academic.

Civil procedure scholars disagree about many things—the scope of pleading rules, the need for liberal discovery, the role of litigation as a regulatory enforcement mechanism. But there is universal agreement that the first-year course is challenging to teach: As the law reviews put it, the course is “hard," “mystifying, frustrating, and difficult” and even “alien and incomprehensible." Civil procedure teachers also agree on the source of the problem: Our students typically lack a real-world context in which to study and engage with the rules and doctrines that they are learning. Numerous teachers have stepped up with excellent books that can supplement the basic procedure casebook, offering simulated case studies, drafting exercises, and practical study aides. Unquestionably these resources can enhance the classroom experience and improve student learning outcomes. Indeed, we reference many of these titles in the Teacher’s Manual to our casebook. The COVID-19 crisis, and the need for many of us to teach remotely, has created additional difficulties for teaching the first-year course as we each incorporate technology into the classroom.


To be sure, teaching and learning Civil Procedure require active engagement both by the professor and the student. However, not every professor is comfortable with technology, and when compelled to teach remotely, might choose to retreat into lecture-style classes. This approach runs the risk of producing rote memorization without maximizing the student’s skill development; at worst, it could stunt the student’s professional growth. Teaching during the pandemic, while the world is shuttered, thus makes it all the more imperative for the teacher to locate and to assign experiential exercises that the students can undertake even while studying remotely; these supplemental materials must be easily accessible on-line and conducive to serving multiple purposes throughout the course. Moreover, choosing from among different exercises must take account not only of a teacher’s individual comfort level with technology, but also the technology that is available at the law school (for example, the “break out” room function on Zoom) and in student living spaces, which in some situations are equipped with erratic or insufficient bandwidth. Recognizing all of these new pressures, we thought it timely to point out the helpful pedagogic tools that are contained in our
Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks, which many of you already use in connection with our casebook. We also will include in our annual Update Memo materials that illustrate how civil procedure is adapting to the pandemic—changes in local rules, the availability of conferencing and oral argument by technology, permission to do constructive service, and so forth.
It’s obvious that the Supplement is an up-to-date source for the Federal Rules of Civil Procedure plus other relevant source materials, such as provisions from the U.S. Constitution, U.S. Code, state constitutions, local rules, and Rules of Appellate Procedure. It also contains edited versions of recent cases of the Supreme Court of the United States. But don’t overlook its utility in providing students with context and opportunities for experiential learning: the Flow Chart of a Civil Action, an Illustrative Litigation Problem with Sample Documents, and the complaints in Twombly and Iqbal. The materials are designed for students at an early stage in their substantive legal education, can be coordinated with reading assignments from our casebook (or from other casebooks), and is compact and accessible.

First, the Flow Chart. As its name suggests, the chart is both a study aide and classroom tool (it originally was designed by Professor Michael Goldberg of the Widener University School of Law, to whom we are grateful, and since has been updated and the graphics, upgraded). The chart depicts the various stages of the lawsuit and marks the different entry points into the rules and doctrines typically taught in the 1L course. Studies show that students learn better if they have images—even simple images—in which to store ideas and information. The chart simplifies procedural moves without being simplistic. The graphics can serve as motivators to learning: Students are encouraged to move forward in the course as they move forward from box to box. Our students did not grow up watching the movie The Blair Witch Project, but they know what it means to be lost in the forest without a GPS or iPhone. The Flow Chart is a kind of map that guides students and helps them map for themselves the strategic advance of a lawsuit.

Second, the Illustrative Litigation Problem. The problem complements the Flow Chart by providing a simulated case file for a lawsuit involving a familiar kind of dispute—a car accident—building on substantive material that many students will be learning in their 1L Torts class. The problem helps to give a general picture of the flow of a lawsuit, and provides sample documents that illustrate how specific procedural rules and issues may arise during the course of a litigation. We find it helpful to point out the problem’s relevance to the particular topics that we are covering in class. So, for example, when we are teaching subject matter jurisdiction, we ask the students to look at Count One of the sample complaint and to discuss whether the complaint includes the necessary allegations to establish diversity of citizenship. Likewise, when we are teaching personal jurisdiction, we ask the students how the evolving standard they are studying, as we move from Pennoyer to International Shoe and on through World-Wide Volkswagen and Nicastro, affects the lawyer’s drafting of the complaint and the facts that the complaint must allege.

Third, drafting exercises. The Illustrative Litigation Problem offers opportunities to have students engage with drafting exercises. These exercises can be done in class or outside of class, individually or collaboratively, and we find it helpful that they be designed with ever-increasing complexity. For example, the question following the amended complaint asks whether defendants, or any one of them, may have the entire case removed to federal court. That question provides the opportunity to have the students draft a motion to remove by one defendant and by all defendants, accompanied by a memorandum of law in support. Similarly, students are asked whether Party B will be successful in challenging the joinder of parties. Students can be asked to draft the motion in opposition together with a supporting memorandum of law.

Civil Procedure is no doubt challenging to teach. One of the hardest parts is helping the students to appreciate how even small, seemingly technical changes can impact rights by raising the costs of enforcement and creating barriers to relief. Making sure that the students have a clear sense of the stages of a lawsuit and how different procedural opportunities inter-relate is an important start, and we believe that the Flow Chart provides a useful pedagogic aide in achieving that goal. Likewise, engaging with simulated lawyering exercises that illustrate how the rules operate in action reinforces student learning, and the Illustrative Litigation problem offers a convenient mechanism. We welcome your suggestions about how to teach the course and how to improve the Supplement so that it meets your classroom needs.

Posted by Howard Wasserman on May 11, 2020 at 03:26 PM in Civil Procedure, Sponsored Announcements | Permalink | Comments (0)

Friday, May 08, 2020

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

EXfriNtWkAEsfGi

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Posted by Howard Wasserman on May 8, 2020 at 02:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Thursday, May 07, 2020

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Posted by Howard Wasserman on May 7, 2020 at 10:59 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Thursday, April 30, 2020

7th Circuit universal injunction in sanctuary cities case

A Seventh Circuit panel on Thursday unanimously declared invalid DOJ's attempt to withhold funds from sanctuary jurisdictions and affirmed a permanent injunction, dividing 2-1 (Rovner wrote the majority, Manion dissented) on the scope of the injunction (while labeling them "universal" throughout). Rovner's opinion walks through the "veritable cottage industry of scholarly articles" on the subject, while suggesting that the scholarly trend is moving away from the constricted view that such injunctions are flatly prohibited.

The majority ultimately approves universality through a version of an indivisibility argument. Because the DOJ programs are formula grants, application of the invalid condition to other entities affects the amount Chicago receives; for Chicago to get the appropriate funds, no entity can lose funds because of this invalid condition. This is different than, for example, a purely discretionary grant of $ X, in which (unlawfully) depriving California of its money does not affect what Chicago receives. Thus, Chicago cannot get complete relief (the proper money to which it is entitled) unless the injunction bars withholding funds from everyone.

Manion's dissent rejects this on several points. The denial of funds to other entities would never reduce Chicago's award, only increase it (the court divides on what the regulations provide on this). Even if such a "windfall" is improper, the windfall comes only if money is denied to Illinois or other municipalities in Illinois; thus an injunction protecting within Illinois is sufficient, without protecting all entities throughout the country. In any event, the majority still errs by giving relief to non-parties in the guise of giving relief to Chicago.

The panel was unanimous on a different scope issue--"temporal" scope. The injunction prohibits DOJ from withholding funds in "future years." The court properly recognized that showing an injury from enforcement of a grant condition allows a party to challenge and a court to enjoin all current and future impositions of such conditions. The alternative would require a party to return each year to challenge each new denial of funds and imposition of unlawful conditions.

Posted by Howard Wasserman on April 30, 2020 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Tuesday, April 28, 2020

Civ Pro Workshop Series

Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) have organized a new remote Civil Procedure Workshop Series, hosted by and modeled on the Evidence Workshop run by Ed Cheng at Vanderbilt). It will be weekly 30-minute discussions with a guest speaker discussing current trends or topics, interesting factoids, or teaching ideas. It is open to all Civ Pro teachers.

The first workshop will be at 3 p.m. EDT (2 p.m. CDT, 1 p.m. MDT, noon PDT), Tuesday, May 5; Alexi Lahav (UConn) will discuss Bristol-Myers Squibb: Going Forward. I will speak on Tuesday, May 12 on a topic TBD.

Register at the above link by clicking on "Register for Civ Pro" (unless you also want to join Ed's Evidence Workshop, which I might do, as well).

Posted by Howard Wasserman on April 28, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, April 20, 2020

JOTWELL: Coleman on Wood on the real world of sexual harassment litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Diane P. Wood, Sexual Harassment Litigation With a Dose of Reality, 2019 U. Chi. Legal F. 395 (2019), which demonstrates the real-world problems facing sexual-harassment litigants.

Posted by Howard Wasserman on April 20, 2020 at 09:44 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, April 10, 2020

University of Miami sued in South Carolina

A putative class action has been filed on behalf of all students against University of Miami, alleging breach of contract and unjust enrichment for sending students home and for teaching them remotely. A lot of people (especially Michael Abramowicz at Volokh) were anticipating such lawsuits and writing about whether schools will have a force majeure defense.

I find the case interesting because the action was filed in South Carolina (where the lead plaintiff lives), raising some jurisdiction and forum-selection problems. Too bad I wrote my exam, because this is a beauty.

Paragraph 8 lists a bunch of minimum contacts, including:

has solicited students residing in South Carolina to attend their institution;
has accepted money, including application and other fees, from students residing in South
Carolina; has participated in college sports competitions and/or academic competitions in
South Carolina; have websites accessible to students in South Carolina; have entered into
contracts with South Carolina residents; and generally have minimum contacts in South
Carolina . . .

A few potential problems.

Sports and academic competitions and an accessible web site are contacts with the state, but those contacts do not seem to "give rise or relate to" the breach of contract claim. That UM's women's basketball team plays Clemson once a year has no connection to whether the school breached its contract by teaching students on-line.

Entering a contract with a South Carolinian gives rise to the claim. But the claims of non-SC class members are not based on contracts entered into  in South Carolina; those contracts were entered into elsewhere. A claim should "relate to" contacts where the defendant engages in identical conduct in the forum state and outside the forum (this is the point in Ford, which was to have been argued at the end of the month). But Bristol Meyers rejected (although not in a federal class action) jurisdiction over claims by out-of-state plaintiffs over out-of-state conduct, even where that conduct is identical to the in-state conduct over which in-state plaintiffs sued. This is Bristol Meyers--identical contracts with SC and non-SC plaintiffs, all plaintiffs together in SC.

There was communication and engagement with South Carolina--soliciting, sending materials, accepting money. But the contract was "about Florida," in that this is where performance was to occur and the things for which plaintiffs paid--dorm space, campus spaces, parking--were in Florida.

If there is jurisdiction, there could be a strong transfer-venue argument, since Miami is the locus of performance of the contract and it is obviously not inconvenient for the plaintiff to travel there, even if she is home in her chosen venue.

One last point on the merits: What do the plaintiffs want and what do they believe the school should have done? They want room-and-board and other campus fees reimbursed, which makes some sense. But what about with respect to tuition? Full tuition reimbursement, even though the students are receiving some (if inferior) instruction? Reimbursement of the difference in value between on-line and in-person education (either for the entire semester or the pro rata portion that went online), however that can be determined? Suspend the semester with full reimbursement and a requirement that the students return for (and pay for) an extra semester at the tail end, thereby delaying graduation by 4-6 months? Or do they want reimbursement and a pass for the semester, so they graduate with only 7 1/2 semesters of course work. Paragraph 24 complains that "the value of any degree issued on the basis of online or pass/fail classes will be diminished for the rest of Plaintiff’s life." Would that be as true if the school awarded a degree with one less semester of work?

Posted by Howard Wasserman on April 10, 2020 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Thursday, April 09, 2020

JOTWELL: Thomas on Green on wage claims by low-wage workers

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Llezlie Green, Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019), discussing the difficulties for low-wage earners bringing wage claims.

Posted by Howard Wasserman on April 9, 2020 at 11:10 AM in Blogging, Civil Procedure | Permalink | Comments (0)